In re: K.P.J. & K.L.J. ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1390
Filed: 16 July 2019
New Hanover County, Nos. 15 SP 796, 797
IN RE ADOPTION OF: K.L.J. and K.P.J.
Appeal by Proposed Intervenor from disposition order entered 18 August 2018
by Judge Melinda H. Crouch in New Hanover County District Court. Originally
scheduled for hearing in the Court of Appeals 7 August 2018. By order issued 27 July
2018, this Court dismissed this appeal pursuant to Rule 37(a) of our Rules of
Appellate Procedure. Upon review granted by the Supreme Court of North Carolina
and by order dated 5 December 2018, the Supreme Court vacated our order
dismissing the appeal, and remanded to the Court of Appeals with special
instructions. Heard in the Court of Appeals 28 March 2019.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for the intervenor-
appellant.
Bobby D. Mills for the petitioners-appellees.
LeeAnne Quattrucci for the Guardian Ad Litem.
MURPHY, Judge.
The New Hanover County District Court (“the District Court”) did not err in
asserting jurisdiction over the adoption of two “Indian children,” K.L.J. and K.P.J.,
subject to the federal Indian Child Welfare Act (“ICWA”). Additionally, the District
IN RE: K.L.J. AND K.P.J.
Opinion of the Court
Court did not err in electing not to give full faith and credit to the Cheyenne River
Sioux Tribal Court’s (“Tribal Court”) determination that Appellant is an “Indian
Custodian,” as defined by ICWA, entitled to the return of the two children. We affirm
the District Court’s Order and Judgment.
BACKGROUND
This is an appeal from the District Court’s Order and Judgment entering
Decrees of Adoption declaring both K.L.J. and K.P.J. adopted by the Petitioners-
Appellees. Both children were born in South Dakota—K.L.J. in 2006 and K.P.J. in
2009—to a father who is a member of the Cheyenne River Sioux Tribe and are,
themselves, members of the same. Shortly after K.P.J. was born the Minnehaha
Department of Social Services in Sioux Falls, South Dakota took custody of both
children due to their parents’ drug and alcohol abuse. K.L.J. and K.P.J.’s biological
parents had their parental rights to the children terminated in 2011. Pursuant to
ICWA, the Tribal Court assumed jurisdiction over the children’s custody proceeding
and placed them in the care of “paternal aunt, Jean Coffman,” the Appellant in this
matter, ordering the children’s case closed and dismissed.
About three months later, Appellant entered into a Temporary Guardianship
Agreement in New Hanover County wherein both children were placed with
Appellees, the Petitioners below, for six months or “as long as necessary, beginning
on [17 January] 2013.” Subsequently, Appellees were appointed K.L.J. and K.P.J.’s
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Opinion of the Court
legal guardians by the Clerk of Superior Court of New Hanover County (“the Clerk”).
In November 2015, Appellees filed petitions in New Hanover County to adopt K.L.J.
and K.P.J.
Neither Appellant nor the Cheyenne River Sioux Tribe were served with the
adoption petitions or given notice of the filings at the time they were made. However,
two weeks after filing, Appellees served the Tribe with copies of the petitions by
certified mail pursuant to an order of the Clerk. Part of this notice advised the Tribal
Court that, if it wished “to participate [in the adoption proceedings, it was] required
and directed to make defense of such pleadings by filing a response to the petition . .
. within thirty (30) days of the receipt [of] this notice in order to participate in and to
receive further notice of the proceedings[.]” The Tribal Court did not take any action
relating to the adoption proceeding within the thirty-day period.
Two months after filing the adoption petitions, Appellees—at the request of
the Clerk of Court—gave formal notice to Appellant, who then attempted to intervene
in the adoption by requesting “the immediate return of the minor Indian Child[ren]
to her physical custody pursuant to the Tribal Custody Order . . . .” Appellant also
moved to vacate New Hanover’s order appointing Appellees as guardians of K.L.J.
and K.P.J. At a hearing before the Clerk in March 2016, Appellant’s motion was
denied, and the matter was transferred to District Court to resolve the issue of
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whether North Carolina has jurisdiction over the adoption. The hearing in District
Court was held on 16 June 2016.
Prior to the hearing in District Court, Appellant filed an ex parte motion with
the Tribal Court on 2 May 2016, in which she asked it to assert jurisdiction over the
adoption of K.L.J. and K.P.J. The record also includes what appears to be a faxed
copy of what purports to be an Order of Jurisdiction issued by the Tribal Court in
response to Appellant’s 2 May 2016 motion wherein the Tribal Court asserts: (1)
K.L.J. and K.P.J. are “Wards of the Cheyenne River Sioux Tribe until the age of 18
years;” (2) Appellant is the children’s “Indian Custodian[;]” and (3) that it has
“exclusive jurisdiction according to ICWA[.]” Both Appellant’s motion and the faxed
copy of the Tribal Court’s Order of Jurisdiction are included in the Record as
“Proposed Intervenor’s Exhibits for June [16,] 2016 District Court hearing[.]” Neither
was admitted into evidence during the 16 June 2016 hearing after Appellees objected
to their admission.
After hearing arguments from both parties, the District Court entered
Findings of Fact and Conclusions of Law on the record and memorialized in an Order
and Judgment filed 18 August 2016. In relevant part, the District Court concluded
“[t]hat this Court has jurisdiction to enter orders with regards to the adoption,” and
ordered “[t]hat Decrees of Adoption are hereby entered as to [K.P.J.] and [K.L.J.]”
ANALYSIS
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In light of our Supreme Court’s 5 December 2018 order, the two issues before
us are: (1) whether it was error for the District Court to assert jurisdiction over an
adoption of “Indian children” covered by ICWA, and (2) whether the District Court
erred in failing to give full faith and credit to the Tribal Court’s purported 2016
determination that Appellant is an “Indian Custodian” of the children entitled to
their return.
“In reviewing a question of subject matter jurisdiction, our standard of review
is de novo.” In re: K.A.D., 187 N.C. App. 502, 503, 653 S.E.2d 427, 428 (2007).
Similarly, “We review de novo the issue of whether a trial court has properly extended
full faith and credit to a foreign judgment.” Marlin Leasing Corp. v. Essa, ___ N.C.
App. ___, ___, 823 S.E.2d 659, 662-63 (2019) (citing Tropic Leisure Corp. v. Hailey,
251 N.C. App. 915, 917, 796 S.E.2d 129, 131 (2017), appeal dismissed and disc. review
denied, 369 N.C. 754, 799 S.E.2d 868, cert. denied, ___ U.S. ___, 199 L. Ed. 2d 385(2017)). After exhaustive review of the record, we affirm the District Court’s Order
and Judgment declaring K.L.J. and K.P.J. the adoptive children of the Appellees.
A. Subject Matter Jurisdiction
Appellant contends the District Court erred in asserting jurisdiction over an
adoption of “Indian children” because the tribal court initially exercising jurisdiction
continued to assert jurisdiction. However, the Tribal Court did not continue to assert
jurisdiction so much as it re-asserted jurisdiction during the pendency of this action.
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Given our standard of review, we must determine de novo whether the District Court
erred in concluding “grounds exist sufficient to give [the District Court] jurisdiction
over this matter to enter an order approving the adoption of these children by the
[Appellees].”
In relevant part, ICWA establishes a tribal court will have exclusive
jurisdiction:
[A]s to any State over any child custody proceeding
involving an Indian child who resides or is domiciled within
the reservation of such tribe, except where such
jurisdiction is otherwise vested in the State by existing
Federal law. Where an Indian child is a ward of a tribal
court, the Indian tribe shall retain exclusive jurisdiction,
notwithstanding the residence or domicile of the child.
25 U.S.C. § 1911(a) (2019). This provision grants tribal courts exclusive jurisdiction
over child custody proceedings in three instances: (1) over an Indian child who resides
within the reservation; (2) over an Indian child domiciled within the reservation; and
(3) over an Indian child who is a ward of the tribal court. Here, the children did not
reside on the reservation and were not domiciled therein at the time this matter
arose, so the only way the Tribal Court could have exclusive jurisdiction over this
matter is if the children were its wards. Based on the record, we cannot conclude the
children were wards of the Tribal Court and hold the provisions of ICWA do not grant
the Tribal Court exclusive jurisdiction over the adoption of K.L.J. and K.P.J.
ICWA and the related sections of the Code of Federal Regulations do not
instruct as to who should make a finding regarding a child’s status as a tribal court’s
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ward and North Carolina does not use the term “ward” in the context of adoptions.1
Black’s Law Dictionary defines a “ward” as “a person, usu[ally] a minor, who is under
a guardian’s charge or protection.” Ward, BLACK’S LAW DICTIONARY (11th ed. 2019).
More specifically, Black’s defines “ward of the state” as “[s]omeone who is housed by,
and receives protection and necessities from, the government.” Ward of the State,
BLACK’S LAW DICTIONARY (11th ed. 2019). For purposes of ICWA, we adopt this
definition for the term “Tribal Court Ward.” Applying this definition to the relevant
provision of ICWA, once a child has stopped being housed by or provided protections
and necessities from the tribe, she will cease being its ward for purposes of 25 U.S.C.
§ 1911(a).
In 2011, South Dakota DSS was granted full custody of the children. In 2012,
the Tribe was granted renewed jurisdiction over the children’s case and placed the
children in the care of their “paternal aunt,” Appellant. There is no evidence the
children ever made the reservation their domicile or residence after that point in
time, nor is there evidence the Tribe housed them or provided protections or
necessities thereafter. In fact, the Appellant sought and obtained guardians for the
children from the courts of North Carolina. Having lived most of their life outside
the Tribe’s reservation and without provision of protections and necessities
1 In contrast, effective 12 December 2016, “The Indian Tribe of which it is believed the child is
a member . . . determines whether the child is a member of the Tribe[,]” and “[that] determination . .
. is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal
or Tribal law.” 25 C.F.R. § 23.108(a)-(b) (2016).
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therefrom, we hold K.L.J. and K.P.J. were not wards of the Tribal Court. The Tribal
Court cannot assert exclusive jurisdiction over this matter under 25 U.S.C. § 1911(a).
Appellant’s argument that the children are Tribal Court wards is based
entirely upon the Tribal Court’s Order of Jurisdiction. In an order purportedly
entered two days prior to the District Court’s adoption order, the Tribal Court
concluded it had exclusive jurisdiction over the children as “Wards of the Cheyenne
River Sioux Tribe until the age of 18 years[.]” Appellant argues the District Court
disregarded that Order despite ICWA’s mandate that our State’s courts “shall give
full faith and credit to the public acts, records, and judicial proceedings of any Indian
tribe applicable to Indian child custody proceedings to the same extent that such
entities give full faith and credit to the public acts, records, and judicial proceedings
of any other entity.” 25 U.S.C. § 1911(d) (2019). However, as is described in greater
detail below, the Order in question was not authenticated and there is nothing in the
record to assure us of (1) its validity or (2) compliance with the Due Process Clause.
The District Court did not err in asserting subject matter jurisdiction over the
adoption of K.L.J. and K.P.J.
B. Full Faith and Credit
Under ICWA, every state “shall give full faith and credit to the public acts,
records, and judicial proceedings of any Indian tribe applicable to Indian child
custody proceedings to the same extent that such entities give full faith and credit to
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the public acts, records, and judicial proceedings of any other entity.” 25 U.S.C. §
1911(d). The District Court seemingly disregarded the Tribal Court’s purported 14
June 2016 Order of Jurisdiction in reaching its decision in this matter and did not
adopt the conclusions therein. Importantly, the Tribal Court concluded (1) K.L.J. and
K.P.J. were wards of the tribal court and (2) Appellant was their “Indian Custodian,”
and therefore entitled to the children’s return. The District Court concluded
otherwise, and Appellant argues it erred in failing to give full faith and credit to the
Tribal Court’s Order of Jurisdiction.
“We review de novo the issue of whether a trial court has properly extended
full faith and credit to a foreign judgment.” Marlin Leasing Corp., ___ N.C. App. at
___, 823 S.E.2d at 662-63. In deciding what weight, if any, we must give the Tribal
Court’s Order of Jurisdiction, we are persuaded by our caselaw regarding foreign
judgments. “[A] foreign state's judgment is entitled to only the same validity and
effect in a sister state as it had in the rendering state[.]” Bell Atl. Tricon Leasing
Corp. v. Johnnie's Garbage Serv., Inc., 113 N.C. App. 476, 478, 439 S.E.2d 221, 223,
disc. review denied, 336 N.C. 314, 445 S.E.2d 392 (1994). “The [Uniform Enforcement
of Foreign Judgments Act (“UEFJA”)] ‘governs the enforcement of foreign judgments
that are entitled to full faith and credit in North Carolina.’” Tropic Leisure Corp.,
251 N.C. App. at 917, 796 S.E.2d at 131 (citing Lumbermans Fin., LLC v. Poccia, 228
N.C.App. 67, 70, 743 S.E.2d 677, 679 (2013)).
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Under the UEFJA, to domesticate a foreign judgment the party seeking to
enforce the judgment “must file a properly authenticated foreign judgment with the
office of the [C]lerk of [S]uperior [C]ourt in any North Carolina county along with an
affidavit attesting to the fact that the foreign judgment is both final and unsatisfied
in whole or in part and setting forth the amount remaining to be paid on the
judgment.” Id.; see N.C.G.S. § 1C–1703(a) (2017). Here, no such filing was made with
any North Carolina court—including ours—and the only copy of the Tribal Court’s
purported Order we have is the unauthenticated copy included in the Record as part
of the “Proposed Intervenor’s Exhibits for June 15, 2016 District Court hearing[.]”
As in Tropic Leisure Corp., we are concerned about the Due Process
implications of giving full faith and credit to the Tribal Court’s Order. “The
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319,
333, 47 L. Ed. 2d 18, 32 (1976) (internal citation and quotation marks omitted). There
is nothing in the record indicating Appellees were given notice of the Tribal Court
proceedings or an opportunity to be heard in the Tribal Court. Indeed, Appellees
made this argument at the 16 June 2016 hearing, and the Order was not admitted as
a result. Additionally, the interests of K.L.J. and K.P.J. were not represented in the
Tribal Court by a Guardian Ad Litem, and the juveniles were not afforded Due
Process at the alleged 14 June 2016 hearing in the Tribal Court.
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We hold the District Court did not err in its treatment of the Tribal Court’s
purported 14 June 2016 Order of Jurisdiction, which was not presented as a properly
authenticated document. To the extent a hearing was conducted in the Tribal Court,
we hold it did not comply with the basic tenants of our Due Process jurisprudence
because no party besides Appellant was given notice of the proceeding or an
opportunity to be heard. In addition to the parties, K.L.J. and K.P.J. were not
afforded Due Process at the alleged 14 June 2016 Tribal Court hearing. Due Process
will not allow the best interests of the children to be silenced.
CONCLUSION
The District Court did not err in asserting jurisdiction over the adoption of
K.L.J. and K.P.J. because the relevant section of ICWA and associated regulations
did not confer exclusive jurisdiction upon the Tribal Court. Additionally, the District
Court did not err in failing to give full faith and credit to an unauthenticated order
purportedly entered by the Tribal Court two days prior to the hearing at issue without
providing Due Process to the Appellees or the unrepresented children.
AFFIRMED.
Chief Judge McGEE concurs.
Judge ARROWOOD concurs in the result without separate opinion.
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